PUT CAPTIVE DEER AND ELK FARMS
AND GAME RANCHES UNDER THE
DEPARTMENT OF AGRICULTURE
House Bill 4427 (Substitute H-1)
House Bill 4428 (Substitute H-2)
Sponsor: Rep. Michael Green
Committee: Agriculture and Resource
Management
THE APPARENT PROBLEM:
The relatively new industry of raising otherwise normally wild deer and elk ("captive cervidae") for their meat and other body products (including "velvet antler product," a so-called "natural alternative" to Viagra) falls under regulation by three state agencies: The Department of Environmental Quality requires a site plan for proposed captive cervidae operations, the Department of Natural Resources regulates the fencing of the land and the clearing of all wild deer from the fenced property (as well as the possession limits and hunting seasons for game ranches), and the Department of Agriculture regulates slaughter facilities and the meat industry in general, including bovine tuberculosis testing and other disease control. Owners of captive cervid operations believe that this multiple regulation is overly burdensome, and that regulation of their industry should be under the sole jurisdiction of the Department of Agriculture.
Legislation modeled on the Michigan Aquaculture Development Act (Public Act 199 of 1996) has been introduced to place all operations involving captive cervids under the Department of Agriculture.
THE CONTENT OF THE BILLS:
House Bill 4427 would create a new act to remove regulation of captive deer and elk operations from licensure by the Departments of Natural Resources and instead place the regulation of all "privately owned cervidae livestock operations" under registration with the Department of Agriculture. House Bill 4428 (MCL 324.40103 et al.) would exempt captive, privately-owned cervids from regulation as game animals by the Department of Natural Resources under the Natural Resources and Environmental Protection Act (NREPA).
House Bill 4427. Currently, the regulation and management of wildlife species - including the licensing of game breeders and dealers and of private shooting preserves - falls under the Natural Resources and Environmental Protection Act (NREPA), and so under the jurisdiction of the departments that administer NREPA, the Departments of Natural Resources (DNR) and Environmental Quality (DEQ). (One exception is the bovine tuberculosis testing of captive cervids, which is done by the Department of Agriculture (MDA).)
The bill would create a new law, the "privately owned cervidae marketing act" to be administered solely by the Department of Agriculture. The bill would declare "cervidae livestock operation[s]" to be agricultural enterprises, a form of agriculture, and "considered to be part of the farming and agricultural industry of this state." Instead of obtaining a license from the Department of Natural Resources, someone who wanted to engage in a "cervidae livestock operation" would have to obtain a registration from the Department of Agriculture. Among other things, the bill would require director of the MDA to assure that cervidae livestock operations were afforded "all rights, privileges, opportunities, and responsibilities of other agricultural enterprises," which means, among other things, that such operations would enjoy the protections of the Right to Farm Act and the tax treatment of other agricultural enterprises.
Definitions . The bill would define, among other things, "cervidae species," "cervidae livestock operation," and "cervidae livestock facility" to include both captive cervidae farms and "game ranches" operated as hunting enterprises under these definitions.
Role of the DNR and DEQ. The Departments of Natural Resources (DNR) and Environmental Quality (DEQ) would provide consultation as requested by the Department of Agriculture in the latter's administration of the bill's provisions.
The Department of Agriculture (MDA) would be required to enter into a "memorandum of understanding" with the DNR for determining compliance (by persons engaged in cervidae livestock operations, applicants, and registered cervidae livestock facilities) with the proposed act and investigation of violations of its provisions. Subject to the memorandum of understanding, and before issuing any registration, the director of the MDA would be required to verify, though written confirmation from the DNR, that the DNR had done both of the following: (1) approved the method used to flush any free-ranging cervids from the facility, if applicable, and that all free-ranging cervids had actually been flushed from the property; and (2) determined that the size and location of the facility would not place unreasonable stress on wildlife habitat or migration corridors. The DNR also would issue appropriate permits for registrants to remove wild cervids from their facilities.
MDA registration of cervidae livestock facilities. Currently, persons who breed and deal in captive cervidae are regulated under Part 421 of NREPA, and must obtain a license from the Department of Natural Resources (DNR) to possess these game species. ("Captive cervidae" is not defined in NREPA, but is defined in the Animal Industry Act. The NREPA defines "game" by means of a list that includes deer and elk. See BACKGROUND INFORMATION) Similarly, the establishment and operation of private shooting preserves, which are regulated under Part 417 of NREPA, also require licenses from the DNR.
The bill would move all operations involving privately-owned (rather than "captive") cervids under the administration of the Department of Agriculture (MDA) by prohibiting a person from engaging in a "cervidae livestock operation" (see "Definitions" above) unless he or she had obtained a "cervidae livestock facility registration" from the department. The bill would require the MDA to issue a registration to operate a cervidae livestock facility to a person who met the bill's requirements. The bill also would allow the department to provide "limited" registration classes.
In order to keep deer or elk in captivity, someone already licensed by the DNR to maintain cervidae species in captivity under the NREPA would have to obtain a registration from the MDA either when the DNR license expired or by January 1, 2003, whichever were earlier. Subject to this requirement, a cervidae livestock facility in existence before the bill took effect would be required to obtain a registration from the MDA by January 1, 2003 in order to continue engaging in a cervid livestock operation after the bill's effective date (which would be 90 days after it were enacted). (Note: "Cervidae livestock facility" is not defined under current law, but would be defined under House Bill 4427.)
Other MDA powers. The Department of Agriculture, or its duly authorized agents, would have access at all reasonable hours to any cervidae livestock facility to inspect and to determine if the bill's provisions were being violated and to secure samples or specimens of any cervidae species. Inspections would have to be designed not to jeopardize the health of the cervidae species.
The director of the MDA could periodically inspect a facility for confirmation (a) that there were procedures or barriers in place designed to prevent the escape of (the privately owned cervids), (b) that all specimens were accounted for, and (c) of compliance with other of the bill's requirements or other laws.
The director could promulgate rules considered necessary to implement and enforce the bill.
Operational standards. The bill would require the Department of Agriculture to use standards, adopted by the Michigan Agriculture Commission and published by the department, to evaluate "the issuance, maintenance, and renewal" of registrations issued under the proposed act. The standards, titled "Operational Standards for Registered Privately Owned Cervid Facilities," could be amended, updated, or supplemented by the MDA -- either by amending the bill or by rule promulgation -- after consultation with the Department of Natural Resources and with the concurrence of the Agriculture Commission. (Note: Only the legislature, not an executive department, can amend legislation.)
Registration application. A completed initial application for a cervid livestock facility registration would have to be submitted to the Department of Agriculture at least 60 days before the construction of the facility was begun.
As part of the application for a registration, an applicant would have to submit a business plan that complied with the standards established under the bill. The bill would define "business plan" to mean a written document of intent that a person submitted to the MDA that defined the methods, protocols, or procedures that the person intended on implementing to comply with the proposed act. The business plan would have to include all of the following:
The Department of Agriculture could not issue an initial cervidae livestock facility registration unless the application demonstrated all of the following:
(1) The facility had been inspected by the director and the director had determined that (a) the facility met the standards and requirements prescribed by and adopted under the proposed act and complied with the business plan submitted to the department, and (b) there were barriers in place to prevent the escape of cervids and the entry of wild cervids. (Perimeter fencing for deer and elk would have to be constructed of woven wire and, in the case of deer, would have to be at least 10 feet high, and in the case of elk at least 8 feet high. The height of perimeter fencing for other cervidae species would be determined "by standards and requirements prescribed by and adopted under" the bill.)
(2) Individual animals were appropriately identified in compliance with the standards established under the bill;
(3) The applicant had all necessary permits required under the sections of NREPA regarding water resources protection (Part 31), inland lakes and streams (Part 301), and wetland protection (Part 303), as well as any other permits or authorizations required by law.
Application denial. Upon receiving a denial of an application, and without filing a second application, an applicant could request in writing that the department provide an informal review of the application and the department would have to comply with the request. The review of the application would include the applicant, the MDA, and the DNR and DEQ, if applicable. After the informal review, if the director of the MDA determined that the proposed facility or operation complied with the bill's requirements, he or she would have to issue a registration within 30 days after the applicant notified the department of the completion of the facility. If the director determined that the proposed facility or operation did not comply with the bill's requirements, he or she would affirm the denial of the application in writing and specify the deficiencies that needed to be addressed or corrected in order for a registration to be issued. The applicant, however, could waive the informal departmental review of the application.
Facility inspection. When construction of a (proposed) cervidae livestock facility were completed, the applicant would have to notify the Department of Agriculture in writing, and within 30 after this notification, the director would have to inspect the facility. If the director determined that the proposed facility met the required standards, he or she would have to issue a registration within 30 days of the inspection. The 30-day time period could be extended by the department only if it were unable to verify the removal of wild cervidae species or for an act of God.
Registration contents. A cervidae livestock facility registration issued by the Department of Agriculture would have to contain the following information:
(1) The registration number and expiration date;
(2) The cervidae species involved in the facility;
(3) The complete name, business name and address, and telephone number of the registration holder;
(4) The complete address of the facility location; and
(5) The complete name, address, and telephone number of the MDA contact person for captive cervidae livestock operations.
Flushing (wild) cervidae from facilities. The bill apparently would require registrants to remove wild cervids from the registered facility before beginning operation of the facility. The bill would require that after flushing (wild) cervidae species in an approved manner, any (wild) cervidae species remaining in a (proposed) cervidae livestock facility would have to be killed or tranquilized and removed by or under the authority of the registrant under an appropriate Department of Natural Resources permit.
Registration denials. If (after a preregistration inspection) the director determined that a proposed cervidae livestock facility did not comply with the bill's requirements, he or she would be required to deny the application for registration and notify the applicant in writing of the reasons for the registration denial within 60 days after receiving a completed application. The notice would have to specify in writing the deficiencies to be corrected in order for a registration to be issued. An applicant could request a second inspection, without filing a second application, after the deficiencies had been corrected, though the department would not be required to make more than two preregistration inspections of the same proposed facility per application.
Upon receiving a second registration denial (after a preregistration inspection), and without filing a second application, an applicant could request an informal departmental review of the application (see "Application denial," above). Procedures identical to informal departmental reviews of application denials would apply, except that in this case the applicant could request a hearing under the Administrative Procedures Act.
If the department denied a registration application, it would not return any of the registration fee.
Registration denials, suspensions, revocations, limitations. After an opportunity for an administrative review, the MDA could deny, suspend, revoke, or limit a registration if an applicant or registrant failed to comply with the bill's provisions, standards adopted or established under the bill, orders issued by the director as the result of an administrative action of informal departmental review conducted under the act, or rules promulgated under the act.
In addition, the MDA could deny issuance of a registration or suspend or revoke a registration if, in consultation with the DNR or DEQ, or both, the MDA determined that "based upon substantial scientific evidence, the issuance of a registration [would] cause, or [was] likely to cause, an unreasonable or adverse effect upon the environment or upon wildlife which [could] not be remedied by, or [was] not addressed by, the existing standards under [the bill]."
Except in the case of an informal departmental review, the MDA would be required to conduct an administrative proceeding under the Administrative Procedures Act (when taking registration actions).
Fees. In addition to allowing limited registration classes, the bill would establish the following four classes of registration, with the accompanying fees for both initial registrations and renewals:
(1) Class I (hobby): $45
(2) Class II (exhibition): $75
(3) Class III (ranch): $500
(4) Full registration: $150
Renewals. Each registration would be for three years from the date it was issued. Applications for renewals of registration would have to be submitted at least 60 days before the current registration expired; otherwise a new application for registration would have to be submitted. However, failure of the department to process a renewal application that was submitted "in a timely and complete manner" would operate to extend the current registration until the department completed its processing. Unless the department indicated otherwise in writing when it sent a registered facility its renewal application, there would be a presumption that the department would renew the registration upon timely submission of the completed renewal application and registration fee.
Registration modifications. A registered cervidae livestock facility would have to apply for a modification of its registration before any change in the registration class of activities for which the registration were issued.
Owners' rights. The Natural Resources and Environmental Protection Act (NREPA) lists the rights of licensed game breeders and dealers in section 42705 as follows: "A person who has secured a license may possess, propagate, use, buy, sell, trap, kill, consume, ship, or transport any or all of the stock designated in that license, and offspring, products, carcasses, pelts, or other parts of the stock as provided in this part," and section 42708 says, in part, that "[g]ame covered by a license may be taken or killed in any manner and at any time". In contrast, on private shooting preserves, which the Department of Natural Resources also licenses, the department determines the percentage of each species released on the premises each year that may be taken by hunting. (MCL 324.41705
Under the bill, cervidae products and cervidae species (i.e. cervids) "lawfully produced, purchased, possessed, or acquired from within this state or imported into this state" would be "the exclusive and private property of the owner." (Under the bill, an "owner" would mean "the person who owns or is responsible for a cervidae livestock operation" and the definition of "cervidae livestock operation" requires that "the producing, growing, propagating, using, harvesting, transporting, exporting, importing, or marketing of cervidae species [i.e. cervids] or cervidae products" be done under "an appropriate registration." So the reference to "lawfully" presumably refers to cervids and their products from an "appropriately registered" operation.)
The bill would not give a (registered) cervidae livestock operation the authority to take "free-ranging animals" (not defined) in violation of NREPA except under a permit issued by the Department of Natural Resources. However, the bill would exempt from NREPA's possession limits and closed seasons involving cervidae (under Parts 401, 411, and 427) an owner "harvesting" (a term not defined in the bill or other laws, but see the Animal Industry Act's definition of "slaughter facility premises" and NREPA's definition of "taking") privately owned cervidae species (presumably, individual cervids) from a registered cervidae livestock facility.
Application of other laws. If an existing cervidae livestock facility were engaged in an activity that was required to be regulated under any other law, registration with the Department of Agriculture under the bill's provisions would not exempt the person or cervidae livestock facility from requirements imposed under any local, state, or federal regulation.
Zoo exemption. Zoos accredited under the American Zoological Association (or other accreditations or standards that the Department of Agriculture considered appropriate and acceptable) would be exempt from the bill's provisions.
Transportation of cervidae. Any movement, importing, or exporting of cervidae species would have to comply with the Animal Industry Act of 1987. A person transporting captive cervidae would have to provide, when asked by a law enforcement officer or the director of the Department of Agriculture, documentation that contained the origin of shipment, registration or permit documentation, documentation demonstrating shipping destination, and any other documentation that might be required under the Animal Industry Act.
A person registered under the bill would have to keep ("and maintain") records of production, purchases, or imports in order to establish proof of ownership.
Prohibitions and penalties. The bill would prohibit a person from "knowingly provid[ing] false information in a manner pertaining to"the proposed act and from resisting, impeding, or hindering the director of the Department of Agriculture in discharging his or her duties under the bill.
The bill also would prohibit the release (or allowing the release) of any "cervidae species" from a cervidae livestock facility (though the bill would explicitly state that this provision would not prohibit the legal sale, breeding, marketing, exhibition, or other approved uses of cervidae species); the bill also would prohibit intentionally causing "the ingress of free-ranging cervidae species" into a registered facility. Owners would be prohibited from abandoning a registered livestock facility without first notifying the MDA in compliance with the standards established under the bill. Releasing cervids from a cervidae livestock facility or abandoning a registered facility would be a misdemeanor punishable by a fine of $300, imprisonment for up to 90 days, or both, for a first offense. For a second or subsequent violation, the misdemeanor would be punishable by a fine of up to $1,000 or imprisonment for up to a year, or both. A person who intentionally released a cervid from a facility, intentionally abandoned a registered facility, or intentionally caused free-ranging cervids to enter a facility would be guilty of a felony.
A person who violated the bill's other provisions or a rule promulgated under the bill would be guilty of a misdemeanor punishable by a fine of at least $300 or at least 30 days' imprisonment, or both.
In addition to the fines allowed by the bill, the court could allow the department to recover reasonable costs and attorney fees incurred in a prosecution resulting in a conviction for a violation.
Upon finding that a person had violated any provision of the bill, a rule promulgated under the bill, or an order issued by the director of the MDA as the result of an informal or administrative hearing, the director could issue a warning, impose an administrative fine of up to $1,000 (plus the costs of investigation) for each violation (after notice and an opportunity for a hearing), or issue an appearance ticket in accordance with the minor offenses provisions of the Code of Criminal Procedure.
If any person failed to pay an administrative fine issued under the bill, the director of the Department of Agriculture would be required to notify the attorney general, who then would be required to bring a civil action in a court of competent jurisdiction to recover the fine. Civil penalties collected would be paid to the general fund.
Finally, the director of the Department of Agriculture could bring an action to do either or both of the following:
(1) Obtain a declaratory judgment that a method, activity, or practice was a violation of the bill's provisions; and
(2) Obtain an injunction against a person who was engaged in such a method, activity, or practice.
The bill would specify that remedies under its provisions were cumulative and that use of one remedy would not bar the use of another unless otherwise prohibited by law.
House Bill 4428. The bill would amend the Natural Resources and Environmental Protection Act (NREPA) to exempt "cervidae species located on a registered privately owned cervidae facility" (as defined in House Bill 4427) from both:
(1) the NREPA's definition of "game" and tagging requirements for moving game animals; and
(2) the Department of Natural Resources' authority to manage and regulate the taking or killing of fish, game and fur-bearing animals.
The NREPA currently also requires the DNR to "issue licenses to authorize the possession for propagation, and for dealing in and selling game" (though the act also prohibits granting a license to applicants who do not own or lease the premises to be used for the purposes designated by the license). The bill would amend this provision to (a) allow, rather than require, the department to issue such licenses and (b) exempt persons registered under the provisions of House Bill 4427 from these licensing provisions.
Finally, the bill would repeal, and reinstate, the December 31, 2004, repealer of the enacting section of Public Act 66 of 1999. In response to the bovine tuberculosis outbreak that was discovered among wild, free-ranging white tail deer in the northeastern Lower Peninsula in 1994, Public Act 66 of 1999 requires the Natural Resources Commission to issue certain orders (1) banning deer and elk feeding in the Lower Peninsula except for "recreational viewing purposes" and (2) establishing criteria for deer feeding in the Upper Peninsula.
Effective date. Both bills, if enacted, would take effect 90 days after enactment.
Tie-bars. Neither bill could be enacted unless both were enacted.
BACKGROUND INFORMATION:
State stewardship of wildlife. Article IV, Section 52 of the state constitution says, "The conservation and development of the natural resources of the state are hereby declared to be of paramount public concern in the interest of the health, safety and general welfare of the people. The legislature shall provide for the protection of the air, water and other natural resources of the state from pollution, impairment and destruction." Wildlife are considered to be among the renewable natural resources of the state, and the legislature statutorily addresses the constitutional mandate to protect this natural resource in the Natural Resources and Environmental Protection Act (NREPA), which is a 1995 codification of many laws enacted over the years addressing the protection of natural resources and the environment.
So under the state constitution and the laws of the state, wild animals - including deer, elk, moose, and other "cervidae" - belong to the people of the state as a whole, and are managed and held in trust by the state on behalf of the state's citizens. Private ownership of wild animals generally is prohibited, though it is allowed under certain circumstances, including licenses for breeders and dealers (see below).
Part 401 of the Natural Resources and Environmental Act (which defines "animals" to mean "wild birds and wild mammals") declares that "[a]ll animals found in this state, whether resident or migratory and whether native or introduced, are the property of the people of the state, and the taking of all animals shall be regulated by the department as provided by law" (MCL 324.427.40105). Thus, the act prohibits persons from taking, releasing, transporting, selling, buying, or having game or any protected animal ("whether living or dead, or parts of any game or protected animal"), whether from within or from outside the state, except as allowed by the NREPA or by a Department of Natural Resources (DNR) order. (The act defines "game" by giving a list of animals, all of whom are designated by the legislature. "Protected" and "protected animals" are animals or kinds of animals designated by the DNR as animals that shall not be "taken," that is, hunted, killed, chased, followed, harassed, harmed, pursued, shot, robbed, trapped, captured, or collected.)
The NREPA explicitly requires the DNR to manage animals in the state, authorizing the department to do a number of general things regarding wild birds and wild mammals, including the following:
Definitions in the Animal Industry Act. In addition to the various definitions regarding animals in the Natural Resources and Environmental Protection Act (see above), the Animal Industry Act also lists a number of definitions having to do with animals. (See MCL 287.703 et al.) The act defines "animal," "domestic animal," "wild animal," and "livestock." The act also, moreover, defines "captive cervidae," "captive cervidae ranch," "captive elk farm," and "captive white-tailed deer farm."
Under the Animal Industry Act, "animal" means "mollusks, crustaceans, and vertebrates other than human beings" (in contrast, for example, to the NREPA definition of "animals," which means "wild birds or wild mammals"). "Domestic animal" means "those species of animals indigenous to North America which have lived under the husbandry of humans." "Wild animal" means "any nondomesticated animal or any cross of a nondomesticated animal." And "livestock" means "those species of animals used for human food and fiber or those species used for service to humans." The definition of "livestock" includes, but is not limited to, cattle, sheep, new world camelids, goats, bison, captive cervidae, ratites (flightless birds, such as ostriches, emus, rheas, cassowaries, and kiwis), swine, equine, poultry (which includes game birds "under the husbandry of humans"), aquaculture, and rabbits. "Livestock" does not include dogs and cats.
The act defines "captive cervidae" to mean "members of the cervidae family including but not limited to, deer, elk, moose, and caribou living under the husbandry of humans." The act distinguishes between captive cervidae ranches, which are defined as premises that contain one or more captive white-tailed deer or captive elk and have captive white-tailed deer or captive elk removed by the hunting method, and captive elk and captive white-tailed deer farms, which are defined as premises that contain one or more captive elk or captive white-tailed deer but that do not have any of these animals "removed by the hunting method."
Game breeders and dealers. Currently, game animal breeders and dealers - which includes breeders of and dealers in deer and elk - are regulated under Part 427 of the Natural Resources and Environmental Protection Act (NREPA). This part of the act prohibits persons from maintaining in captivity, propagating, or selling game animals ( "except otherwise provided by law") without a valid and current DNR license (MCL 324.42703). Once a person has secured such a license, however, he or she may then "possess, propagate, use, buy, sell, trap, kill, consume, ship, or transport any or all of the stock designated in that license, and offspring, products, carcasses, pelts, or other parts of the stock as provided in this part" of the act (MCL 324.42705). However, if wild, state-owned game animals are present on land that is covered by a license, the applicant must either drive it off the land in question or buy the state-owned game from the state and secure title to the game. (Except for deer, which go for $250 each, the price to be paid for the state-owned game is fixed by the DNR, though the price can't exceed the market value that the game have for breeding purposes.)
The NREPA requires the Department of Natural Resources (DNR) to issue licenses to authorize "the possession for propagation," and for dealing in and selling game (MCL 324.42702), if certain conditions are met. "All islands, enclosures, and pens used for propagation" must be "of a character and in a location that the department approves as satisfactory to keep in complete and continuous captivity the stock covered by the license, and shall be constructed in a manner to prevent the entrance of wild stock of the same species" (MCL 324.42706). The DNR is prohibited from issuing a license or approving an enclosure or pen capable of enclosing deer, unless the following conditions are met:
Except from game birds (which can't be shot except in special situations), game covered by a license may be taken or killed in any manner and at any time (MCL 324.42708).
According to the Department of Natural Resources, as of February 21, 2000, there are 544 Captive Wildlife permits for the possession of deer (currently totaling 21,154) and 197 permits for elk (currently totaling 2,995), with a total of 625 enclosures (since 116 of the total of 741 permits are for the possession of both deer and elk).
Also as of February 21, 2000, there are 40 pre-applicants in the process of building enclosures for deer or elk, and 34 current permit holders who are in the process of expanding their enclosures. More than half of the permit holders (344, or 55 percent) have fewer than six acres enclosed. A quarter (160, or 25 percent) of the permit holders have 6 to 39 acres enclosed, 63 (or 10 percent) have between 40 and 199 acres enclosed, and 29 (or 5 percent) have between 200 and 499 acres enclosed. Of the remaining permit holders, 17 have between 500 and 999 acres enclosed, 9 have between 1,000 and 1,552 acres enclosed, and 3 have between 3,800 and 5,500 acres enclosed.
The number of permits issued has risen steadily through the years. According to departmental figures, captive white-tailed deer permits and elk permits have increased as follows from 1992 to 1999:
1992 1993 1994 1995 1996 1997 1998 1999
Deer 363 325 458 503 531 561 540 544
Elk 42 52 78 116 141 170 179 197
Private shooting preserves. Currently, Part 417 of the Natural Resources and Environmental Protection Act regulates private shooting preserves. The Department of Natural Resources (DNR) issues licenses authorizing the establishment and operation of private shooting preserves, which preserves may allow hunting on Sundays even if local ordinances or regulations prohibit Sunday hunting. There is a $35 license fee for a shooting preserve of 320 acres or less, and a $60 fee for those over 320 acres. Shooting preserves must contain at lest 80 acres, but cannot contain more than 640 acres. A shooting preserve license entitles the holder (as well as his or her lessees or licensees) to take, by hunting, the percentage of each species released on the premises each year as determined by the DNR. The only birds that can be hunted on private shooting preserves are artificially propagated wild turkeys and wild turkey hybrids and other artificially propagated species designated by the DNR. Wild birds or wild animals of a species other than those allowed to be hunted under the authority of a private shooting preserve license cannot be hunted or killed on the shooting preserve except in accordance with the state laws governing hunting in the state. The DNR may establish an open season for shooting preserves that must be at least 120 days long (MCL 324.41701 to 324.41712).
The Right to Farm Act. The Right To Farm Act (MCL 286.471 to 286.474) defines "farm," "farm operation," "farm product" (which includes cervidae), and "generally accepted agricultural and management practices" (abbreviated as "GAAMPS).
"Farm" means "the land, plants, animals, buildings, structures, including ponds used for agricultural or aquacultural activities, machinery, equipment, and other appurtenances used in the commercial production of farm products."
"Farm operation" means "the operation and management of a farm or a condition or activity that occurs at any time as necessary on a farm in connection with the commercial production, harvesting, and storage of farm products." The act lists ten items included under the definition of "farm operation":
(1) Marketing produce at roadside stands or farm markets;
(2) "The generation of noise, odors, dust, fumes, and other associated conditions";
(3) The operation of machinery and equipment necessary for a farm, including irrigation and drainage systems and pumps and on-farm grain dryers, and the movement on roadways of vehicles, machinery, equipment, and farm products and "associated inputs" necessary for farm operations;
(4) Field preparation and ground and aerial seeding and spraying;
(5) The application of chemical fertilizers or organic materials, conditioners, liming materials, or pesticides;
(6) Use of alternative pest management techniques;
(7) The fencing, feeding, watering, sheltering, transportation, treatment, use, handling and care of farm animals;
(8) The management, storage, transport, utilization, and application of farm by-products, including manure and agricultural wastes;
(9) The conversion from a farm operation activity to other farm operation activities; and
(10) The employment and use of labor.
"Generally accepted agricultural and management practices" (GAAMPS) means those practices as defined by the Michigan Commission of Agriculture. The act requires the commission to give "due consideration" to "available Michigan Department of Agriculture information" and to written recommendations from (1) the Michigan State University College of Agriculture and Natural Resources Extension and the Agricultural Experiment Station in cooperation with the United States Department of Agriculture Natural Resources Conservation Service and the Consolidated Farm Service Agency, (2) the Michigan Department of Natural Resources, and (3) "other professional and industry organizations."
The act also requires the commission to review GAAMPS annually and revise them "as considered necessary." Currently, the commission has defined five GAAMPS: (1) "Manure Management/Utilization"; (2) "Pesticide Utilization/Pest Control"; (3) "Nutrient (i.e. fertilizer) Utilization"; (4) "Care of Farm Animals"; and (5) "Cranberry Production." Draft GAAMPS for "Site Selection and Odor Control" (at new and expanding animal livestock facilities) have been written and will be adopted by June 1, 2000, as required by Public Act 261 of 1999 (see below).
Under the act, a farm or farm operation cannot be found to be a public or private nuisance if either (1) it conforms to GAAMPS as formulated by the Agriculture Commission, or (2) it existed before a change in the use of occupancy of land within one mile of the farm or farm operation's boundaries and would not have been a nuisance before the change. Moreover, if a farm or a farm operation conforms to GAAMPS, it cannot be found to be a public or private nuisance as the result of any of the following:
(1) A change in ownership or size;
(2) Temporary cessation or interruption of farming.
(3) Enrollment in government programs.
(4) Adoption of new technology.
(5) A change in the type of farm product being produced.
Local control, GAAMPS, and Public Act 261 of 1999. The Right to Farm Act states that it does not affect the application of state and federal statutes, and specifically mentions the county, township, and city and village zoning acts as being among the state statutes not affected. Nevertheless, Public Act 261 of 1999 (enrolled Senate Bill 205) amended the Right to Farm Act, among other things, to prohibit local units of government from enacting ordinances -- including zoning ordinances -- that conflict either with the act or with "the generally accepted agricultural management and practices" (GAAMPS) established by the Michigan Commission of Agriculture.
Public Act 261 of 1999 also requires the Agriculture Commission to adopt, in addition to the current five sets of GAAMPS (see Right to Farm Act, above), GAAMPS for site selection and odor controls at new and expanding animal livestock facilities.
FISCAL IMPLICATIONS:
According to the House Fiscal Agency, the bills would result in an indeterminate increase in both costs and revenues to the state. The Department of Agriculture would collect registration application fees that would cover the inspection costs and other expenses related to the program. The amount of revenue collected each year would depend on the number of facilities registered, and the class of each operation. (4-26-00)
ARGUMENTS:
For:
Michigan has an extremely diversified agricultural industry, and opportunities to continue this diversification benefit not only the industry itself but the entire state. In 1996, the legislature enacted the Michigan Aquaculture Development Act. The bills, like the aquaculture statute did for the aquaculture industry, would establish cervid livestock operations as a legally protected and regulated agricultural industry in the state, with all of the rights and privileges other agricultural enterprises are entitled to. Under the bills, the young and growing cervid livestock industry would be strengthened and encouraged to continue to expand and contribute both to local economies and to the state's economy as a whole. Cervid livestock operations currently are not legally recognized as valid agricultural enterprises, nor do they receive the tax benefits that other agricultural enterprises do. Instead, current law treats captive cervids such as deer and elk the same as their wild cousins, which means that they are regulated under the same law as wildlife resources are managed and regulated and that captive cervid enterprises must obtain licenses from the Department of Natural Resources. At the same time that the bills would simplify the regulation of privately owned deer and elk enterprises, the bills also would strengthen this regulation, preventing, for example, poorly run "deer farms" where the animals are not properly cared for. An added, and for some parts of the state, a major benefit of supporting the expansion of the cervid livestock industry as an agricultural enterprise is that even though the majority of the existing operations are in suburban areas (for example, Genesee County, with 40 such facilities, has the highest number in the state) these operations are ideally suited to land which otherwise is suited for little other commercial development. Cervids thrive in wetlands, and by promoting the development of this industry, the bills also could contribute significantly to the preservation of farmland and open spaces. Also, unlike the intensive domestic livestock operations, cervid livestock operations do not have the same kinds of environmental impact on the land and their environs that so many people object to in the case of intensive domestic livestock operations. Cervid livestock operations are "neighbor friendly," and can put to productive use land which otherwise either may not support other kinds of productive farming or may be privately developed in ways that decrease people's access to desirable natural areas in the state. Placing both "game ranches" as well as deer and elk "farms" under the same regulation also would benefit those cervid livestock operations that allow their product to be taken, for a fee, through hunting, since the owners or operators of these enterprises would not be restricted in when or how their product could be taken. Although game breeders and dealers currently are allowed to take or kill any or all of the game stock designated in their DNR license "in any manner and at any time," private shooting preserves are only allowed to take, by hunting, a percentage of the game on their premises each year and must follow the DNR hunting seasons. Under the bills, both kinds of operations would have complete control over how, when, how much, and which of their game stock was taken or killed, without any outside restrictions on their privately-owned property.
At the same time, the bills would allow cervid livestock operators to decide whether or not they wanted to make this change: those operators that decided not to comply with the standards promulgated by the Department of Agriculture still would remain subject to regulation by the Department of Natural Resources and the NREPA (as reportedly one operation already has decided to do), and those that chose to be regulated by the Department of Agriculture would register with the department and have to meet the department's "Operational Standards for Registered Privately Owned Cervid Facilities."
For:
The bills would give the Department of Natural Resources a stronger regulatory say over the impact of tall fencing on private lands to hold captive deer and elk on critical habitat and on the movement of wild deer and elk. Currently, the DNR has no authority to deny issuing permits to build tall fences at facilities to hold wild deer and elk. The bills would change this by requiring that before the Department of Agriculture issued a registration under the bills, the DNR would have to have determined that the size and location of the facility would not place unreasonable stress on wildlife habitat or migration corridors.
Against:
Though not all of the potential effects of the bills are clear, hunting and conservation interests have expressed concern with the potentially adverse impact of conflating farming and hunting operations. The bills would do this by moving authority for all captive cervid operations -- not just captive cervid farms, but shooting preserves as well -- under the Department of Agriculture. Given hunters' concerns over what sometimes seems to be an increasingly hostile public attitude towards hunting, blurring the distinction between domestic livestock and wild game animals could further public confusion over the distinctive value of hunting as a separate tradition and industry.
The bills could have potential repercussions on the public's perception of hunting in the state, in addition to furthering public confusion between "publicly-owned" wildlife, which is a public natural resource, and "privately-owned" wildlife, which is becoming a booming private industry. In fact, this confusion between wildlife as a public natural resource and as a private property right seems to be shared by some of the entrepreneurs in the captive cervid farming industry itself, if testimony before the House committee is any indication. One operator of a captive cervid farm operation mentioned, with apparent indignation, that when he bought his land for his captive cervid operation he took immediate possession of all of the vegetation on the land but was forced by the Department of Natural Resources to drive off the wild deer on the land and pay for those he was unable to so drive off. He appeared to believe that he should have been allowed to claim possession of the wildlife on the land he bought, just as he was entitled to take possession of the trees and other plants on the land, clearly not understanding that wildlife is a public natural resource and not a private possession.
Designating "game ranches" or shooting preserves (such as those owned by hunting clubs) as "agricultural enterprises" to be regulated by the Department of Agriculture, instead of viewing them as hunting facilities properly regulated by the Department of Natural Resources would appear to begin to dangerously blur the distinction between hunting and farming, at least as traditionally known. Many hunters already feel that anti-hunting sentiment among certain sectors of the public potentially threatens this ancient sport. What, if any, will be the effect on hunting of the bill's conflation of captive wild animals hunted for sport and those same animals slaughtered like domestic livestock for their meat and other body products? Will the general public understand the difference between "privately-owned" and "publicly-owned" cervids? Will this lead to a situation such as exists in, for example, in some European countries, where reportedly all wildlife is privately owned, and therefore accessible only to those who can afford to pay to have access to it?
Response:
With regard to whether or not people will further confuse the difference between privately owned livestock and wildlife held in the public trust, two analogous situations with regard to fish may be somewhat reassuring. First is the publicly well-understood difference between commercial and sports fishing. Even though sometimes the very same species are harvested, in the one case for commercial profit and in the other for sport, people don't seem to have any trouble distinguishing between the two activities, nor with accepting sport fishing as a legitimate interest separate from commercial fishing. Nor does the use of the term "harvesting" in both of these contexts seem confusing. Secondly is the well-understood difference between sports fishing and aquaculture. Under aquaculture, fish are raised and harvested specifically as a commercial food source. (And in fact, a law was enacted, the Michigan Aquaculture Development Act, in 1966 "to define, develop, and regulate aquaculture as an agricultural enterprise in this state.") Again, the development of the aquaculture industry as an agricultural enterprise does not seem to have confused people about the difference between sports fishing and the (agricultural) aquaculture industry. The bills would simply extend these concepts to the realm of "farm-raised cervids," much in the same way as commercial aquaculture engages in the business of "farm-raised fish."
Against:
Among other things, the bill would place privately-owned captive cervid operations under the protections of the Right to Farm Act and give them the benefits of current agricultural tax breaks. This could exacerbate existing property rights problems that some smaller landowners have when the land they have bought for hunting camps has been fenced in by their neighbors' fencing of neighboring tracts of land, which allegedly has resulted in stopping the movement of wildlife, including wild deer, across the smaller tracts of land. While the bill would allow the Department of Natural Resources to look at the effect of fencing on critical habitat and overall wildlife migration, this would not necessarily protect the loss of value to small landowners when the movement of wild deer across their property was restricted and didn't have critical habitat or general migration implications.
The effect of the tax breaks that would accrue to existing captive cervid enterprises on local units of government also is not clear. Would local units of government lose some of their tax bases if the bills are enacted? How would this affect the amount of tax support for public schools?
Against:
Currently, the Natural Resources and Environmental Protection Act [MCL 324.42706(2)(a)] requires, as a condition of issuing a breeder's or dealer's license, that the township or the city in which the breeder's or dealer's enclosure is located "grant authorization" for the enclosure to be located within the township or city. Apparently, this generally means that the proposed enclosure or pen must conform to local zoning ordinances. By putting all cervid livestock facilities under the protection of the Michigan Right to Farm Act, with its expanding exemptions of agricultural enterprises from local control, it is unclear whether or not cervid livestock facilities under the bill would continue to need to conform to local ordinances. Some people fear that since some of these facilities could be quite large (although the average size currently is about 40 acres, a few facilities cover between 3,800 and 5,500 acres), local units of government - and possibly even private residents whose property would adjoin a proposed fenced cervid facility - should at the very least be notified when someone proposed to build such a facility.
POSITIONS:
The Department of Agriculture supports the bills. (4-25-00)
The Michigan Farm Bureau supports the bills. (4-28-00)
The Michigan Deer Breeders Association supports the bill. (5-1-00)
The Michigan Elk Breeders Association supports the bill. (5-1-00) The Michigan United Conservation Clubs supports the concept of the bills, but has concerns about the inclusion of captive cervid ranches under the same definition as captive cervid farms. (4-26-00)
Analyst: S. Ekstrom